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Too Much Work?

Americans have undoubtedly learned more in the past couple of months about the Foreign Intelligence Surveillance Court and its extensive powers than in the previous 35 years of the court’s existence. But it shouldn’t have taken the renegade intelligence analyst Edward J. Snowden to let us in on a fact that, while hardly secret, had been little noticed: in establishing the court, Congress gave the authority to name its judges to one individual, the chief justice of the United States.

As Charlie Savage reported in The Times last month, Chief Justice John G. Roberts Jr. has used that authority to name Republican-appointed judges to 10 of the court’s 11 seats. (While Republicans in Congress accuse President Obama of trying to “pack” the federal appeals court in Washington simply by filling its vacant seats, they have expressed no such concern over the fact that the chief justice has over-weighted the surveillance court with Republican judges to a considerably greater degree than either of the two other Republican-appointed chief justices who have served since the court’s creation in 1978.)

The ensuing controversy is, I think, a good thing. The country is overdue for a discussion about whether we have given the chief justice – any chief justice, not just this one – too much to do.

While provoked by the question of whether Chief Justice Roberts has made the best choices for a particular court, the issue is a good deal deeper. The office of Chief Justice of the United States has grown enormously in recent decades in responsibility and complexity – not because of power-grabbing chief justices but because Congress has piled onto the office a large number of added responsibilities. What was Congress thinking when it told the chief justice to choose 11 federal district judges to sit on the foreign intelligence court, as well as the three additional judges who sit to review the special court’s decisions? (The selections aren’t subject to approval, or even consultation, anywhere else in the government.) Or how about other statutes that give the chief justice similar authority to staff other specialized courts and judicial bodies?

Congress has, for example, instructed the chief justice to choose the seven members of the judicial panel that consolidates mass tort cases and chooses which court to send them to for trial; this may sound like a fairly technical matter, but these tend to be huge cases with far-reaching economic consequences. The chief justice also chooses the five judges who make up the Alien Terrorist Removal Court (a court established in 1996 to determine whether an alien should be removed from the country for being a terrorist, and which I confess I never heard of until doing the research for this column).

Before the independent counsel statute expired, thankfully, back in 1999, the chief justice chose the three judges charged with naming an independent counsel to investigate allegations of executive branch wrongdoing. The aura of partisanship lingers from that panel’s fateful decision in 1994 to name Kenneth W. Starr as the independent counsel to investigate President Bill Clinton. Two of the judges, appointed two years earlier by Chief Justice William H. Rehnquist, decided to ditch the experienced and scrupulously nonpartisan incumbent, Robert Fiske. The third judge, John D. Butzner Jr., an elderly Southern Democrat, went along quietly after having dissented internally, a fact revealed by Ken Gormley in his 2010 book, “The Death of American Virtue: Clinton vs. Starr.”

These extra duties are in addition to serving as the head of a branch of government consisting of some 2,000 judges and many thousands of other employees, a complex bureaucracy with its own turf battles and sometimes toxic internal politics. The chief justice presides over the Judicial Conference of the United States, which makes policy for the judicial system and speaks on behalf of the judiciary to Congress. While the chief justice doesn’t choose the 26 other members of the conference, composed of the chief judges of the federal circuit courts as well as district judges chosen by their colleagues, he selects the more than 200 members of the two dozen committees in which the real work of the Judicial Conference is conducted. Chief Justice Roberts has named 67 judges to senior positions on Judicial Conference committees. According to Russell Wheeler, a visiting scholar at the Brookings Institution and a leading authority on the judicial branch, who analyzed the data at my request, these appointments have been roughly proportional to the judiciary as a whole in terms of whether the judges were appointed by Republican or Democratic presidents.

For the eight associate justices, serving on the Supreme Court is assumed to be a full-time job (although a number of the current justices do find time to maintain active off-the-bench lives of speaking and writing.) Assuming a chief justice’s day has only 24 hours, the actual work of judging must account for just a fraction of a normal workweek. In 2006, my Yale Law School colleague Judith Resnik published a list of the federal laws that impose “statutory duties” on the chief justice. She came up with 81 laws and sections of laws (including the expired independent counsel statute.) Chosen almost at random from this list, these include appointing the top administrative officials of the judicial branch, setting salaries for various employees, serving as a trustee of the National Gallery of Art and a regent of the Smithsonian Institution, approving policies governing the Supreme Court library, establishing rules for the handling of classified information, and summoning the attorney general to address the Judicial Conference on “matters related to the United States as a party before the courts.”

Debate over whether the chief justice has too broad a mandate is nothing new. It’s gone on for years in academic and policy circles. Professor Resnik and Professor Theodore Ruger of the University of Pennsylvania have spoken and written at length of their concerns about the accretion of power in the hands of a single life-tenured official. As Professor Ruger pointed out in a 2004 article titled “The Judicial Appointment Power of the Chief Justice,” appointments to special courts are problematic because judges are being selected to serve one specific pre-ordained function, an unusual situation that raises at least the possibility of strategic appointments designed to serve a chief justice’s personal policy goals.

In 2009, a group of prominent law professors drafted and sent to Congress a proposal for limiting a Supreme Court justice to seven years as chief justice, much as the chief judges of the lower federal courts, where judges become chief through seniority, are limited by law to a single seven-year term. In a letter to leaders of the House and Senate Judiciary Committees, the professors said a limitation on the chief justice’s tenure was desirable given that “over time, the powers and responsibilities of the office have been extended into numerous other political, administrative, and non-judicial roles calling for a measure of special accountability.” There has been, needless to say, no response from the Hill.

The vigorous insiders’ conversation about the chief justiceship rarely breaks through to public attention, as it may have begun to do in the past few weeks. I certainly don’t expect any major reversal of a decades-long trend, and it’s probably naïve to expect even a small change unless an incumbent chief justice lobbies to be relieved of some of the extra responsibilities. But it’s a public conversation well worth having.

One current Supreme Court justice may recall encountering the issue of the chief justice’s authority once before. Shortly before his elevation to the Supreme Court, then-Judge Anthony M. Kennedy, of the federal appeals court in San Francisco, heard an appeal from a man convicted of trying to sell defense secrets to Russian spies, who turned out to be F.B.I. agents. The sting operation had been prompted by conversations overheard on a wiretap authorized by the Foreign Intelligence Surveillance Court.

On appeal, the defendant, Thomas P. Cavanagh, raised various challenges to the surveillance court’s operation. He argued that because the Constitution gives the president the power to appoint judges, the chief justice couldn’t constitutionally appoint judges to the surveillance court. Judge Kennedy wrote the opinion in United States v. Cavanagh for a unanimous three-judge panel, affirming the conviction and rejecting the constitutional argument out of hand.

As authority, Judge Kennedy cited a 1916 decision in which the Supreme Court unanimously rejected the notion that a federal judge nominated and confirmed to one district couldn’t validly preside over a trial in another district. (Under one of the statutes on Professor Resnik’s list, the chief justice can temporarily assign a judge to sit elsewhere.) The defendant in this old case, Lamar v. United States, argued that the result of his trial by a re-assigned judge had been to “usurp the power of appointment and confirmation vested by the Constitution in the president and the Senate.”

“We think merely to state it is to demonstrate its absolute unsoundness,” the Supreme Court said in disposing of this argument in a single sentence.

Decisions were shorter in those days. Today’s Supreme Court would most likely find its own more verbose way to say the same thing. While critics have raised the question of whether the chief justice’s authority to appoint the intelligence court judges comports with the Constitution, I’d be surprised if that argument got traction at the Supreme Court. But as we hear so often from Washington these days, just because something is constitutional doesn’t mean it’s the best idea, or even a good one.

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Linda Greenhouse, the winner of the 1998 Pulitzer Prize, writes on alternate Thursdays about the Supreme Court and the law. She reported on the Supreme Court for The New York Times from 1978 to 2008. She teaches at Yale Law School and is the author most recently of the book “The U.S. Supreme Court: A Very Short Introduction,” as well as a biography of Justice Harry A. Blackmun, “Becoming Justice Blackmun.” She is also the co-author, with Reva B. Siegel, of “Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court’s Ruling.”